Smoking gun? DoJ misidentified agent authors for Flynn 302s

Is this a mere technical error, or something more fundamental about the case against Michael Flynn? Recall that the former national security adviser pled guilty to a single count of obstruction nearly a year ago based on a representation by the FBI that he had materially misled the agents that interviewed him regarding his contacts with Russia. This case should have been over months ago, but the judge in the case all but told Flynn to keep requesting postponements so that he could atone more for his sins before sentencing.

In other words, this case should have been complete and unalterable by now. So what to make of this? Via Twitchy, which has more discussion on the topic:

The filings can be accessed through PACER, if one wants to sign up and pay for that service, or through Court Listener, which has all of the Flynn case’s court filings. The official court filing and the attached letter both explain that the DoJ has, at this late date, suddenly discovered that the 302 notes previously identified as Peter Strzok’s were in fact written by FBI agent Joe Pientka, and vice versa:

Last evening, we received word that our Surreply may have misidentified the authorship of the handwritten notes from the January 24, 2017 interview of your client. Specifically, we were informed that the notes we had identified as Peter Strzok’s, were actually the other agent’s notes (see Surreply, Exhibit 1), and what we had identified as the other agent’s notes were in fact Strzok’s notes (see Surreply, Exhibit 2).

This morning, we asked the FBI to re-examine the electronic records from the January 24 interview, and they confirmed that the government mistakenly identified these notes in its March 13, 2018 discovery letter. Strzok’s notes are those numbered DOJSCO-700021192—DOJSCO700021195; and the other agent’s notes are those numbered DOJSCO-700021196—DOJSCO700021198. We understand that this has caused some confusion, and we regret our error. The government has no other corrections to make about the notes.

That’s a strangely tardy bit of discovery in a federal court case. Under normal circumstances, it might not matter much, other than as a technicality. After all, FBI agents write the 302s based on their recollection of their interviews, and which agent wrote what would matter less to a court than what the notes actually detail.

This case, however, does not have “normal circumstances.” When the 302s were released last December, they showed that the agents initially believed Flynn told them the truth in his interview. Only later did the FBI and DoJ take a different position on them, which led Kimberley Strassel at the time to wonder why — and who changed their mind:

If that were the case, why did the DoJ misidentify the authorship of the notes for so long, and why? If it hadn’t been for Judge Emmet Sullivan threatening Flynn with a harshly punitive sentence, this notice wouldn’t have qualified as “discovery” except in the most technical sense. Flynn would have had to demand to reopen the case or file a lawsuit to pursue this issue.

On top of that, it’s not as if this set of notes wasn’t particularly scrutinized by FBI leadership. In fact, former FBI agent James Gagliano argued yesterday before these filings became known that the edits themselves are the smoking gun in the Flynn case. Gagliano had never seen agents directed to change their 302 notes except to correct grammatical errors, and had never seen superiors edit interview notes directly:

One of the most damning charges contained within Powell’s 37-page court brief is that Page, the DOJ lawyer assigned to the office of then-FBI Deputy Director Andrew McCabe, may have materially altered Flynn’s interview FD-302, which was drafted by Strzok. FBI agents transfer handwritten interview notes onto a formal testimonial document, FD-302, within five days of conducting an interview, while recollections are still fresh.

It is unheard of for someone not actually on the interview itself to materially alter an FD-302. As an FBI agent, no one in my chain of command ever directed me to alter consequential wording. And as a longtime FBI supervisor, I never ever directed an agent to recollect something different from what they discerned during an interview. Returning a 302 for errors in grammar, punctuation, or syntax is appropriate. This occurs before the document is ultimately uploaded to a particular file, conjoined with the original interview notes which are safely secured inside a 1-A envelope, and secured as part of evidence at trial. …

So, did an accomplished 3-star general actually misrepresent the truth? Or, was his recollection of events later spun to be a mendacious accounting by overzealous investigators who followed their boss’s lead, while circumventing established protocol in an ambush-style interview? What apparently followed was a “tweaking” of the accounting to ensure Flynn be charged with Title 18 USC § 1001 – something I have long argued was never charged by any U.S. Attorney’s Office during my time serving in the FBI unless we wanted to threaten it and employ as leverage.

Setting aside valid arguments that the FBI acted inappropriately — treating the Trump White House differently than they would have treated Bush’s or Obama’s, as the hubristic Comey proudly admits — Powell’s charges of egregious government misconduct are certainly deserving of the court’s consideration. The withholding of clearly exculpatory material related to revelations that “important substantive changes were made to the Flynn 302” may well be central to the findings of Inspector General Michael Horowitz and Durham, as well.

One can only wonder what Gagliano makes of this development, too. Did the FBI often confuse one agent’s notes for another? If so, did it take this long into a case to set the record straight?

The bigger question is what the court will make of this. Sullivan took Flynn to the woodshed earlier, accusing him of “selling your country out,” among other comments. Given all of the unusual activity around these notes, will Sullivan be able to accept this as a mere and harmless bureaucratic accident? Or will it start looking more like a smoking gun for a directed dismissal, as Flynn’s attorney has already demanded? Sullivan might well be concerned that Horowitz and Durham’s findings might eclipse his own — and the DoJ has handed him an easy out now, if Sullivan wants to take it.